Settlement of disputes under the 1982

United Nations Convention on the Law of the Sea The case of the South China Sea dispute

Dong Manh Nguyen* UN-Nippon Foundation Fellowship on the Law of the Sea New York, December 2005

(*) The author is a legal expert at Department of International Law and Treaties,

Ministry of Foreign Affairs of Vietnam. Nevertheless, the views expressed in the present

work do not necessarily reflect the position of the Government of Vietnam, the United

Nations, or the University of Queensland. The author would like to acknowledge the valuable

comments and suggestions from the lecturers at the Marine and Shipping Law Unit

(MASLU), T.C. Beirne School of Law, the University of Queensland as well as from those at

the DOALOS/UN in completing this paper.

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I. Introduction

Disputes are an inevitable part of international relations1 and it is

hardly deniable that, among international disputes, territorial and

territorial-related disputes are the most complicated ones. Undoubtedly,

these disputes have been the primary source of the growing tension in

relations among States which is likely to lead to armed conflicts or

eventful wars2 when they are not settled amicably and peacefully. The

sanctity of the territorial issue to the peoples in question - nationalism and

the associated passions - have made these disputes extremely difficult to

resolve. Furthermore, these disputes have been further complicated by

historical, cultural, political, military and economic phenomena.

Nevertheless, States are required, under international law, to resolve their

international disputes by peaceful means and in conformity with the

principles of justice and international law so that international peace,

security, and justice will not be breached.3

Known to many as the constitution for the oceans,4 the 1982

United Nations Convention on the Law of the Sea (LOS Convention)5

was considered as one of the most successful of the codifications and

progressive developments of international law made by the United

Nations since the end of the World War II. The LOS Convention has set 1 J.G Merrills, International Dispute Settlement, Third edition, (1998), at 1. 2 Tuomas Forsberg, “Expalaining Territorial Disputes: From Power Politics to Normative Reason”, (1996), Vol. 33. No. 6, Journal of Peace Research, at 443; see also Catley and Makmur Keliat, Spratlys: The Dispute in the South China Sea, (1997), at 2. According to the authors, there were 86 serious international conflicts between 1919 and 1975, and of this number, 39 originated from territorial dispute. 3 Article 1 and 2 of the Charter of the United Nations. 4 Remarks by Tommy T.B. Koh, President of the Third United Nations Conference on the Law of the Sea at the final session of the Conference. 5 The LOS Convention was adopted on 30 April 1982 as the result of the long nine years of tireless negotiation took place at the Third United Nations Conference on the Law of the Sea. The LOS Convention came into force on 16 November 1994 and currently 149 countries are parties to the LOS Convention (source: http://www.un.org/depts/los/reference_files/status2005.pdf).

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out an international legal order within which all activities in the oceans

and seas must be carried out. As a comprehensive legal framework for the

law of the sea, the LOS Convention has elucidated the rights and

obligations of all States, including: coastal, land-locked and geographical

disadvantaged States and other international actors in various functional

maritime areas; the protection of marine environment; marine scientific

research; activities in the Area…, as well as settlement of disputes

mechanism applicable for disputes that may arise during the

implementation and interpretation of the LOS Convention. The settlement

of disputes mechanism contained in Part XV of the LOS Convention,

which is characterized by the compulsory procedures entailing binding

decisions, has made the LOS Convention unique among major law-

making treaties and “one of an extremely small number of global treaties

that prescribe mandatory jurisdiction for disputes arising from

interpretation and application of its terms”.6

Since the LOS Convention came into effect it has made pre-

eminent contributions to the strengthening of peace, security, cooperation

and friendly relations among all nations in conformity with the principles

of justice and equal rights. The LOS Convention has also played an

important role in promoting of the economic and social advancement of

all peoples of the world, in accordance with the purpose and principles of

the United Nations as embodied in the Charter of the United Nations, as

well as for the sustainable development of oceans and seas. Such

contributions made by the LOS Convention have always been fully

recognized and highly appreciated by the States and international

community.7

6 Natalie Klein, Dispute Settlement in the UN Convention on the Law of the Sea, (2005), at 2. 7 United Nations Resolution A/Res/59/24.

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The South China Sea (SCS) dispute is composed of two aspects:

the overlapping jurisdictional claims and the territorial dispute over

groups of mid-ocean islands. It is regarded as one of the most complex

disputes in the East Asia, if not of the world,8 and remains a dangerous

source of potential conflict9 which could turn into a serious international

conflict10 if it is not properly managed and resolved. Complicated by

many factors such as number of claimants, the economic and strategic

nature of the area, the SCS dispute of which the dispute over the

sovereignty of the Spratly islands is a main problem has long attracted the

intention of international community and many attempts have been made

to investigate the real causes of the dispute as well as to introduce

possible resolutions.11 The complexity of situation has made the SCS

dispute more vulnerable to armed conflict. In fact, a number of armed

conflicts relating to the SCS and the Spratly islands dispute have

occurred.12

The aim of this paper is to examine the relationship between the

LOS Convention and the SCS dispute, in particular the effects of the LOS

Convention as well as its settlement of dispute mechanism may have or

may not have on the SCS dispute. The paper is composed of 3 Parts. Part

I describes the geopolitical context of the SCS region, the origin and 8 Robert W. Smith and Bradford Thomas, “Island Disputes and the Law of the Sea: An Examination of Sovereignty and Delimitation of Disputes” in Myron H. Norquist anh John Norton Moroe (eds), Security Flashpoints: Oil, Islands, Sea Access and Military Confrontation, 1997, at 59. 9 Scott Snyder, The SCS Dispute, Prospects for Preventive Diplomacy (Special Report No.18 of the United States Institute of Peace). Available at: http:// usip.org/pubs/specialreports/early/snyder/south_china_sea1.html, last visited 15 April 2005). 10 Micheal Bennet, “The People’s Republic of China and the use of International Law in the Spratly Islands disputes”, (1992), Vol. 28, Stanford Journal of International Law, at 425. 11 See complete bibliography on the SCS Disputes in Timor Kivimaki (ed), War or Peace in the SCS, (2003), at 171-210. 12 Samuel S. G. Wu; Bruce Bueno de Mesquita, “Assessing the Dispute in the SCS: a Model of China’s Security Decision Making”,(2001), Vol. 38, No. 3 International Studies Quarterly, at 381; Mark J. Valencia, China and the SCS Disputes, (1998) at 3; Epsey Cooke Farrel, The Socialist Republic of Vietnam and the Law of the Sea, (1998), at 257; Marko Milivojevic, “The Spratly and Paracel Islands conflict”, (1989), Vol. 1/2, Survival, at 70-71; Choon-ho Park, East Asia and the Law of the Sea, (1983), at 177.

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development of the SCS dispute. Part II will focus on the settlement of

disputes mechanism provided in the LOS Convention, while Part III

examines the relationship between the LOS Convention and the SCS

dispute as well as the possibility of the application of the settlement of

disputes mechanism to the SCS dispute and the latest developments with

respect to the SCS dispute. This paper will pay particular attention to the

Spratly dispute, where ownership of the islands is claimed wholly or

partly by Vietnam, China, the Philippines, Malaysia, Brunei or Taiwan.

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PART I - THE SOUTH CHINA SEA DISPUTE

I. The Geo-political context of the South China Sea

1. Geography of the South China Sea

In order to comprehend the complexity of the SCS dispute, it is

necessary to grasp the correspondingly complex geography of the SCS.

The SCS is categorised as a semi-enclosed sea,13 covering an area of

648,000 square miles (equivalent to 3,000,000 square kilometres) of the

Pacific Ocean, stretching roughly from the Strait of Malacca in the

southwest, to the Strait of Taiwan in the northeast.14 The SCS is

surrounded by most of the ASEAN States,15 China and Taiwan territory,

that is, to the north by China and Taiwan, to the west by the Socialist

Republic of Vietnam, to the south and southwest by Malaysia, Brunei,

Indonesia and Singapore, and to the east by the Philippines.16

The SCS seabed was described by Prescott on the basis of its

topographic characteristic as follows:

The seabed can be divided into three zones: First, there is a broad,

shallow continental shelf which occupied the entire Gulf of Thailand

and continues south eastwards to the western tip of the island of

Borneo. Second, this shelf is continued in two arms skirting the shores

of the sea. This section which follows the coast of Vietnam narrows to

13 Article 122 of the UNCLOS defines the closed or semi-closed sea as “a gulf, basin or sea surrounded by two or more States and connected to another sea or the ocean by narrow outlet or consisting entirely or primarily of the territorial seas and exclusive economic zones of two or more coastal States”. 14 J. Peter Burgess, “The Politic of the SCS: Territoriality and International Law”, Security Dialogue, (2003) Vol. 34, No. 1, at 7. 15 ASEAN stands for the Association of Southeast Asia Nations which was founded in 1967. The current state members of the ASEAN are: Brunei, Burma, Cambodia, Indonesian, Lao, Malaysia, Philippines, Singapore, Thailand and Vietnam. 16 J. Peter Burgess, ibid.

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about 30 nautical miles before broadening again to occupy the Gulf of

Tonkin and to measure more than 120 nautical miles in width off Hong

Kong. The eastern continuation of the main continental shelf, a long

the north coast of Borneo, remains narrow throughout its length. The

third zone occupied the main basin of the SCS, and this is an area of

confused topography. Northeast of the main continental shelf the slope

descends by a series of terraces covered with material derived from the

continental shelf. This transition zone is succeeded by volcanic

seamounts which are sometimes crowned by a coral reefs and islands

in the Spratly Group. To the northeast again, the mass of islands is

replaced by an abyssal plain with depths of more than 4000 metres.

Even in this zone there are some seamounts marked by the Paracel

islands.17

Dr. Hasjim Djalal, an Indonesian senior diplomat and well-known

expert on the law of the sea, on the other hand, pointed out that the

seabed of the SCS consists of about 1,000,000 square kilometres of

continental shelf above the 200 meters isobaths, and about 2,000,000

square kilometres of seabed area deeper than 200 meters.18 Of the seabed

area of the SCS, the continental shelf area is mainly located in the

western and southern parts (Sunda Shelf), while the deeper part is located

much more to the north-east. The deeper part, reaching more than 5000

meters in some areas (SCS Basin), is dotted by various shallow banks and

coral reef islands.19

There are a numerous of islands, islets, rocks and reefs, banks

which are scattered in the SCS. However, no exact number of these

features is available since many of these features are not always above

17 J. R. V. Prescott, the Political Boundaries of the World, (1985), at 210. 18 Hasjim Djalal, “South China Sea Disputes” in Myron H. Norquist and John Norton Moroe (eds), Security Flashpoints: Oil, Islands, Sea Access and Military Confrontation, (1997), at 109. 19 Ibid.

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sea level.20 According to a Taiwan-sponsored survey conducted between

1946 and 1947, the SCS contains 127 inhabited islets, shoals, corals reefs,

banks, cay and rocks.21 Other research states that there are more than 200

islets, rocks and reefs in this area.22 Nevertheless, it is generally agreed

that most of these features are not suitable for human habitation but they

are of vital economic, strategic, political and legal importance.23 These

features are grouped into four mid-ocean groups of islands, namely: (i)

the Pratas islands, (ii) the Paracel islands; (iii) the Spratly islands, and (iv)

Macclesfield Bank.24

a) Pratas islands: Pratas islands are made up a group of one island

6 km long and 2 km wide and two small banks - South Vereker and North

Vereker - just located west of Pratas Island.25 Pratas island is located at

latitude 200 30’ to 210 31’ N., longitude 1160 to 1170 E., 170 nautical

miles from southeast of Hong Kong, 240 nautical miles from southeast of

Taiwan and 269 nautical miles north of Paracel.26

b) The Paracel islands: Located at latitude 150 46’N., longitude

1110 11’ to 1120 54’ E., the Paracel islands consists of two main groups

of islets, the western group, the Amphirite group and southern group, the

Crescent group with more than 30 islands, islet, cays and reefs, occupying

an area of 15,000 square kilometres of the SCS.27 The total of area of land

20 Bob Catley and Makmur Keliat, note 2, at 2. 21 Hungdah Chiu, “SCS Islands: Implication for Delimiting the Seabed and Future Shipping Routes”, (1977), No. 72, China Quarterly, at 15. 22 Hasjim Djalan, note 18, at 110. 23 Christopher C. Joyner, “Toward a Spratly Resource Development Authority: Procursor Agreements and Confidence Building Measures”, in Myron H. Norquist and John Norton Moroe (eds), Security Flashpoints: Oil, Islands, Sea Access and Military Confrontation, (1997), at 214. 24 Ibid. 25 Marwyn S, Samuels, Contest for the SCS, (1982), at 183. 26 Ibid. 27 Ibid.; “Gioi thieu mot so van de co ban cua luat bien o Vietnam”, Bo Ngoai giao, Nha Xuat ban chinh tri quoc gia (the introduction of the main issues of the law of the sea in Vietnam, Ministry of Foreign Affairs of Vietnam, the National Political Publisher), (2003), at 161.

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that is above the high water mark in Paracel islands is about 10 square

kilometres.28 Woody island, the 2 km long and 1 km wide island, is the

most important island in the Paracel islands.29

c) The Spratly islands: Consisting of more than 235 features,30 the

Spratly islands are a chain of islands, isles, shoals, banks, atolls, cay and

reefs31of which 148 have been named.32 These features stretch

approximately 500 nautical miles from north to south and 400 nautical

miles from east to west.33 Many of these features are almost entirely

below the high water mark and of 20 islands that protrude above sea level

at the high tide, the largest one is Taiping island which is only 0,43

square kilometres.34 The Spratly islands are situated in the centre of the

SCS, more than 900 nautical miles south of the Chinese island of Hainan,

230 nautical miles east of the Vietnamese port of Nha Trang, and 120

nautical miles west of the Philippine island of Palawan, and 150 nautical

miles northwest of the Malaysian State of Sabah.35 The Spartly islands

have no permanent inhabitants and are too small to sustain permanent,

independent settlements,36 all claimants with the exception of Brunei,

have sustained military garrisons on the Spartly islands.37

28 Ibid. 29 Marwyn S. Samuels, ibid, at 3. 30 Bob Catley and Makmur Keliat, note 2, at 3. 31 Christopher C. Joyner, ibid., at 219. 32 Marius Gjetnes, “Maritime Zones generated by the Spratlys: Legal Analysis and Geographical Overview”¸ Energy and Security in the SCS Project, University of Oslo, 24-26/4/1999. 33 Micheal Bennet, note 10, at 429. 34 Ibid. 35 Barry Hart Dubner, “The Spratly “Rock” dispute-A “Rockapelago” defies norms of international law”, (1995), Temple International and Comparative Law Journal. 36 Ibid. 37 Bjorn Moller, “Military Aspect of the Disputes”, in Timor Kivimaki (ed), War or Peace in the SCS, (2003) p 64. According to the author, as of 1998, China occupied 7 positions, the Philippine 9, Vietnam 24, Malaysia 3, Taiwan 1.

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d) The Macclesfield Bank: located at latitude 150 20’N., longitude

1130 40’ to 1150 E., 60 nautical miles east of Paracel Islands, the bank is

about 75 nautical miles long and 33 nautical miles wide.38

2. The importance of the SCS to the region and the global

community

The manner in which the States of the SCS region perceive the

importance of the SCS to their national interests has a great influence on

their positions with regards to a resolution of the SCS dispute. Situated at

the crossroad of Europe, West Asia and India on one side, and Japan and

China on the other, together with abundant wealth of natural resources,39

the SCS is of vital commercial and strategic significance to the States of

the regions. For thousand years, the SCS has been sustained trade

relations amongst peoples of Southeast Asia, and between them and other

people of the world such as Persian, Arabia, India and China.

Consequently, in the course of history, the prosperity of various

Kingdoms in the region had depended largely upon the SCS and, to some

extent, the rise and fall of some of these Kingdoms were determined by

their capability to use the sea between East and Southeast Asia.40 The

continued strategic importance of this area has been demonstrated by the

Japanese Navy’s activities during World War II. The Spratly islands, at

that time, were used as a submarine base for Japanese Navy. The SCS,

therefore, become an area in which great powers involved their interests

and wanted to expand their military and political influence. During the

Cold War, with the presence of foreign military troops, the geopolitical 38 Marwyn S. Samuels, note 25, at 187. 39 Phiphat Tangsubkul, “The New Zones of National Jurisdiction in the Law of the Sea: Developmental Implication for Southeast Asia” in John P. Craven, Jan Schneider and Carol Stimson (eds), The International Implication of Extended Maritime Jurisdiction in the Pacific, (1989), at 50. 40 Bob Catley and Makmur Keliat, note 2, at 3.

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competition between super powers and their allies was also particular

tense in this area.41

a) Strategic location: the SCS is one of the most strategic

waterways in the world42 which links Northeast Asia and the Western

Pacific to the Indian Ocean and the Middle East. Being mostly export-

oriented and resources-deficient, Asian Pacific States depend heavily on

seaborne trade.43 It is estimated that more than 41,000 ships – over half

the world’s shipping tonnage – sail through the sea each year and more

than 80 percent of the oil imported by Japan, South Korea, and Taiwan

transits through the area.44 Furthermore, liquefied natural gas (LNG)

shipments through the SCS constitute two-thirds of the world’s overall

LNG trade.45 Accordingly, two way trades transiting the region’s sea

lines of communications is important not only for the economies of

Southeast Asia, but also for those of Northeast Asia, Europe, and the

United States.46 Not only used for international trade and commercial

purpose, the sea lanes of communication in the SCS are also utilized for

military purpose. For the United States, freedom and safety of navigation

and overflight in the SCS region are critical strategic interests because the

SCS can be used as a transit point and operating area for the United States

Navy and Air Force between military bases in Asia and the Indian Ocean

and Persian Gulf areas.47 Snyder therefore argued that any military

conflict in the SCS which threatens the strategic interests of the United

States, or the security and economic interests of Japan, might be seen as

41 Ibid, at 7. 42 Hasjim Djalal, note 18, p 111. 43 Ji Guoxing, “Asian Pacific SLOC security: The China Factor”, Royal Australia Navy, Working Paper No. 10, at 8. 44 Scott Snyder, Brad Glosserman and Ralph A. Cossa, “Confidence Building Measures in the SCS”, (2001), No.2, Issue and Insights, at 10. 45 Ji Guoxing, ibid, at 9. 46 Citing John Noer and David Gregory in Ji Guoxing, ibid, at 8. 47 Scott Snyder, note 9.

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sufficiently destabilizing to invite United States involvement to preserve

navigational freedom in these critical sea lanes.48 Meanwhile, the Spratly

islands are located approximately in the centre of the SCS, and thus the

control over these islands would allow the controlling States to place a

substantial part of the SCS under its jurisdiction49 and monitor all sea

traffic through the SCS. This, in turn, would affect all activities in the

SCS. The significance of the Spratly islands dispute is therefore more

wide-ranging than the area confined by the SCS.50

b) Natural resources: The SCS is proved to be rich in both living

and non-living resources.

In Southeast Asia, fish and fishery products traditionally have been

major source of protein. Fish and the fishing industry remain an important

economic activity since most of the States bordering the SCS are

developing countries in which the agricultural economic sector still

accounts for a considerable part of their national economies. The fisheries

industry plays an important role in securing sources of food and income

for the States in the region. Statistics showed that in the mid-1990 the

value of the annual fish catch was possibly worth over US $ 3 billion.51 It

is estimated that roughly 70% of the South East Asia population are

coastal dwellers, representing approximately 270 million people, nearly

5% of the world population.52 The SCS provides 25% of the protein

needs for 500 million people and 80% of the Philippine diet.53 The SCS

ranks the fourth among the world’s 19 fishing zones in terms of total

48 Ibid. 49 Hungdah Chiu, note 21, at 757. 50 Bob Catley and Makmur Keliat, note 2, at 1 51 Ibid., at 35. 52 Tom Nass, “Danger to the environment”, in Timo Kivimaki (ed), War or Peace in the SCS, (2002), at 44. 53 Hasjim Djalal, note 18, at 112.

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annual marine production with a catch of over 8 million metric tons (live

weight) of marine fish: this represents about 10% of the total world catch

and 23% of the total catch in Asia.54

With respect to non living resources, the SCS is widely known for

its rich oil and gas reservoirs and oil and gas have been discovered in

most parts of the SCS.55 The discovery of oil and gas reservoirs in the

West Pacific has made Indonesia one of the world’s leading oil exporting

state. The combination of onshore and offshore petroleum has given

Brunei the highest per capita gross national production in the region.56

For the other States, the revenue from oil and gas activities has also

contributed considerably to their national economies. Therefore, offshore

petroleum development is now given priority by the States in SCS region.

Since the end of the Cold War, the world has witnessed certain Southeast

Asian economies surpass global growth rate. Accordingly, these high

rates of economic growth naturally lead to a corresponding increased

consumption resource. In the context of globally increased demand for

oil and gas resources and the instability and shortage of the oil and gas

supplying resources due the political turmoil in the Gulf, it is clear that

the SCS is expected to accommodate the need for oil and gas resources

for the States in the region thus amplifying the potential for conflicting

claims. There are conflicting numbers of the oil and gas potential in the

Spratly islands area because of the lack of full assessments. According to

the 1995 assessment made by the Russia's Research Institute of Geology

of Foreign Countries, the Spratly Islands area might contain 6 billion

barrels of oil equivalent, of which 70% would be natural gas.57 While the 54 Tom Nass, ibid. 55 Bob Catley and Makmur Keliat, note 2, at 45. 56 Douglos M.Johnston and Mark J. Valencia, Paccific Ocean Boundary Problems: Status and Solution (1990), at 51. 57 Scott Snyder, note 9.

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Chinese media called the SCS "the second Persian Gulf," estimating oil

resources near the Spratly islands to range from 105 billion barrels to 213

billion barrels.58

II. The South China Sea dispute

1. History of the Spratly islands dispute

Essentially, as outlined above, the SCS dispute consists of two

aspects: maritime boundary disputes and territorial disputes. The latter

was the most contentious, with the involvement of six parties in the

region. Despite the fact that the Paracel and Spratly islands have always

been parts of the Vietnamese territory, and sovereignty over these islands

has been exercised peacefully, continuously and effectively by Vietnam

at least since the 17th century,59 these islands have recently been the

subject of bilateral and multilateral territorial disputes between Vietnam

and other countries/territory in the region. The Paracel islands are

disputed between Vietnam and China, while the sovereignty over the

Spratly islands is also claimed wholly or partly by Vietnam, China,

Philippines, Malaysia, Brunei or Taiwan. The strategic and economic

importance of the Spratly islands is the driving force behind the

motivations that led the other States/territory to contest the sovereignty of

Vietnam over the Paracel and Spratly islands.

To challenge Vietnam’s long standing sovereignty over these

islands, as well as advance their claims, a series of different historical

records, version of events, archaeological evidence and legal grounds 58 Scott Snyder, Brad Glosserman and Ralph A. Cossa, note 44, at 10- 12. 59 See details in the White Papers on the Truong Sa (Spratly) and Hoang Sa (Paracel) islands published by the Ministry of Foreign Affairs of Vietnam in 1981 and 1988 respectively.

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have been presented by the other disputants. More importantly, all but

Brunei have occupied and fortified various features of the Spratly islands

as a way to demonstrate their sovereignty: “possession is nine-tenth of the

law”.60

Both China and Taiwan base their claims to sovereignty over

Spratly islands on historical evidence, by referring to archaeological finds

and ancient documents,61 and they argue that they were the first to

discover the Spratly Islands and their discovery dated back to as early as

200 B.C. However, the validity of the evidence presented by China is

questionable. Although an archaeological object may feature Chinese

style, or was originally made in China, it cannot be assumed that the

object was brought to the island by someone who represented China as a

state.62 Furthermore, it was in 1988, for the first time, by attacking the

Vietnamese Navy force who have garrisoned in the Spratly islands, that

China established control of certain features in the Spartly islands.

The Philippines’s claim to most of the Spratly islands is principally

based on the discovery of several islands in 1947 by a Fillippo citizen,

Thomas Cloma, who then individually claimed and attempted to establish

the new State of “Kalayaan” in 1956.63 However, when Thomas Cloma

made claims to the Spratly islands, the Philippines government seemed

60 Brian K. Murphy, “Dangerous Ground: The Spratly Islands and International Law”, (1994-1995), Ocean and Coastl Law Journal, at 190. 61 Ibid. 62 Stein Tonnesson, “The History of the Dispute” in Timo Kivimaki (ed), War or Peace in the SCS, (2002), at 7. 63 Park Hee Kwon, The Law of the Sea and Northeast Asia: A Challenge for Cooperation, (1990), at 92. See also Brian K. Murphy, ibid., at 196.

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not to support him64 and the first official claim by the Philippine

government came in 1971.65

Malaysia and Brunei were the latest States to enter into the dispute

over the Spartly islands and unlike other disputants, their claims were not

based on the on historical evidence, but on the interpretation of the law of

the sea.

In 1979, by publishing the official map of the Malaysian outer limit

of the continental shelf, Malaysia asserted for the first time its claims to

the sovereignty over twelve features of the Spratly islands.66 The

Malaysian claim is based on geography and relevant provisions of the

LOS Convention. The general approach taken by Malaysia is rooted in

the assumption that a state possessing a continental shelf also possesses

sovereign rights over land formations arising from that continental

shelf.67 In evaluating the Malaysian claim, Christopher C. Joyner argued

that such claims appeared ill-founded, misguided and flawed under

contemporary international law.68 Indeed, there is no provision in

international law to support acquisition of territory by using the principle

of the continental shelf.69

As recognized in international law, there are five principal modes

of acquiring territory, namely: occupation, cession, subjugation,

64 Park Hee Kwon, note 63, at 92. 65 Christopher C. Joyner, “The Spratly Islands Dispute: Rethinking the Interplay of Law, Diplomacy, and Geo-politics in the SCS”, (1998), Vol. 13, No.2, The International Journal of Marine and Coastal Law, at 202; See also Chi kin Lo, China’s Policy Towards Territorial Disputes: The Case of The South China Sea Islands, (1989), at 141 66 Chi kin Lo, ibid., at 153. 67 Park Hee Kwon, ibid, at 93. 68 Christopher C. Joyner, ibid. 69 Bob Catley and Makmur Keliat, note 2, at 38

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prescription and accretion.70 Cession is the transfer of the sovereignty

over territory by the owner state to another state while occupation is

perceived as “the act of appropriation by a States through which it

intentionally acquires sovereignty over such territory as is at the time not

under the sovereignty of another State”.71 Subjugation is a mode of

acquiring the enemy territory72 but it was no longer prevailed in

international law since the use of force to occupy the other’s territory was

prohibited by international law. Accretion is the acquisition of territory

through new formations. The prescription, to some extent, is the same

with occupation but differs from occupation in the status of the occupied

territory and period time of uninterrupted occupation.

Brunei claims jurisdiction over the seas surrounding the Louisa

Reef in the southern part of the Spratly islands and like Malaysia, Brunei

claim is also based on the provision of the LOS Convention.

To establish a legally recognized sovereignty over no State’s land

(terra nullius) or an island, the claiming states must meet the criteria for

the acquisition of territory as provided in international law. The principle

of “effectiveness” which was created and developed by the international

tribunals through following cases: the island of Palmas of 1928, the island

of Clipperton of 1931 and the Legal Status of Eastern Greenland of 1934.

These judgements have set the international standard for the acquisition

of sovereignty over islands and thus became international customary law.

This principle was refined in the judgments given by the International

Court of Justice (ICJ) in cases concerning islands disputes brought to it.

For instance the recent case concerning the sovereignty dispute between 70 Lauterpacht, Oppenheim’s International Law, Seventh edition, (1953), at 498 71 Ibid., at 507 72 Ibid., at 521.

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Indonesia and Malaysia over the islands of Ligitan and Sepadan, the ICJ

reaffirmed in its judgement the content of the principle of “effectiveness”

made by the Permanent International Court of Justice of 1934 to which

the principle of “effectiveness” includes many factors of which the most

important element is

the continued display of authority, [which] involve two elements each

of which must be shown to exist: the intention and will to act as

sovereign and some actual exercise or display of such authority.73

The strength and weakness of each disputant’s claims to the

Spratly islands in light of international law has been subject to many

analyses made by the commentators inside and outside the regions.

However, due to the complex nature of the Spratly islands dispute, no

common view has been reached among the commentators.

2) Maritime boundary disputes and the law of the sea:

Regarded as a main source of disputes in the law of the sea,

maritime boundary disputes, by their nature, are broadly considered as

those relating the delimitations of the sea areas over which the coastal

States can exercise jurisdiction in conformity with international law in

general and the law of the sea in particular. As the national jurisdiction of

coastal States over maritime space has been expanded relatively in

parallel with the evolution of the law of the sea, maritime boundary

73 See ICJ Summary report of the Pulau Ligitan and Pulan Sepadan case.

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disputes can be seen as an unavoidable consequence of this extension of

jurisdiction.74

Delimitation of sea areas always has an international aspect; it

cannot be dependent merely upon the will of the coastal States as

expressed in its domestic law.75 Although the establishment of limits at

sea is a unilateral act- as only the coastal State is competent to undertake

it- the validity of these limits, depends upon other States recognition and

international law.76 Thus, according to Robert W. Smith and Bradford

Thomas, delimitation of maritime boundaries takes on two related

meanings: in the first instance, delimitation as it pertains to the

establishment and definition of maritime zones to which States are

entitled to under the provisions of the LOS Convention; and secondly, as

it pertains to the delimitation of marine space between neighbours in

areas where claims overlap.77

Traditionally, the maritime zones over which State sovereignty is

exercised have been grouped into three successive categories: internal

waters, territorial sea, and the contiguous zone.78 This reflected the

struggle between two conflicting trends of thought in the law of the sea

that emerged in 17th century: freedom of the sea and the dominion of the

sea. The former trend was represented by Hugo Grotius, a Dutch author

who defended the freedom of the sea, while the latter was supported by a

British author, John Selden, who argued for the right of States to extend

74 Christopher D. Beeby, “Extended Maritime Jurisdiction: A South Pacific Perspective” in John P. Craven, Jan Schneider and Carol Stimson (eds), The International Implication of Extended Maritime Jurisdiction in the Pacific, (1989), at 23. 75 Fisheries case, ICJ Report, (1950), p 20. Available at http://www.icj-cij.org/icjwww/icases/iukn/iukn_judgment/iukn_ijudgment_19511218.PDF 76 Ibid. 77 Robert W. Smith and Bradford Thomas, note 8, at 56. 78 Bernard H. Oxman, ‘The Sea under National Competence’ in Dupuy Vignes (ed), A Handbook on the New Law of the Sea, (1991), at 247.

20

their jurisdiction over the sea.79 The law of the sea, therefore, has always

been in the middle, attempting to balance these conflicting forces.80

However, since the 17th century, the freedom of the high seas

doctrine had prevailed in the law of the sea.81 Consequently, the national

jurisdiction of the coastal State was limited to a narrow belt of the sea

along a state’s coastline: the territorial sea. Although coastal States had

relied on different criteria for the establishment of the breadth of the

territorial sea, the “cannon shot”, or 3 nautical miles rule, was widely

recognized as limit of the territorial sea and became almost universally

accepted.82

The first international attempt to codify the breadth of the

territorial sea occurred during the 1930 Hague Conference for

Codification of International Law which was held under auspice of the

League of Nations with the participation of 48 States.83 However, the

Hague Conference failed to reach agreement on the breadth of the

territorial sea due largely to the fact that each country refused to

compromise its own interests to achieve uniformity. The views among

participating States were so divergent, some of which argued for the 3-

mile rule, while other advocated for a wider territorial sea.84 In the end,

20 States favoured the 3-mile territorial sea, but eight of them would

accept this limit only on the condition that a contiguous zone of some

79 See Louis B. Sohn and John E. Noyes, Case and Materials on the Law of the Sea, (2003), at 2-3. 80 Bernard H. Oxman, note 78, at 247. 81 Historical perspective of the Convention. Available at: http://www.un.org/depts/los/convention_agreements/convention_historical_perspective.htm (last visited 15 June 2005). 82 Tommy T.B. Koh, “The Origin of the 1982 Convention on the Law of the Sea”, (1987), Vol. 29, Malaya Law Review, at 4-7. 83 See the list of the 48 participating Government to the 1930 Hague Conference for Codification of International Law at American Journal of International Law, Sup.Vol 24, at 169. 84 Tommy T.B. Koh, ibid., at 7- 8.

21

kind be recognized; 12 States demanded for a 6-mile territorial sea, the

Scandinavian States supported a 4-mile territorial sea, while others

proposed not fixing a uniform distance for all purposes and for all

countries.85 Despite the failure of the Hague Conference, the participating

States did not give up their efforts to continue to work on this important

issue and, in the final recommendation the Conference, requested the

Council of the League of Nations to invite the Governments to continue

to examine the issue in the light of the Conference’s discussion and

related questions.86

On one hand, the sea area beyond the “cannon shot” was regarded

as high seas: the seas proclaimed to be free to all and belonging to none.

On the other hand, the coastal states were concerned that a territorial sea

of 3 miles seemed to be too narrow and proved to be inadequate for the

protection of certain interest of the coastal state, especially with respect to

custom and fiscal matters. These considerations gave rise to the idea of

the establishment of the contiguous zone.87 The question of the nature and

legal regime of the contiguous zone was also discussed at the 1930 Hague

Conference.88 During the Hague Conference, a proposal was put forward

to create a contiguous zone beyond the territorial sea in which coastal

state would be empowered to prevent and punish infringements by

foreign vessels of coastal states’ regulations regarding custom, sanitation

and nations security.89 However, like the issue of the breadth of the

territorial sea, the Conference failed to reach a compromise on the

85 R.P. Anand, Origin and Development of the Law of the Sea: History of International Law Revisited, (1983), at 141. 86 American Journal of International Law, Sup.Vol 24, at 238. 87 Bernard H. Oxman, note 73, at 248. 88 American Journal of International Law, Sup.Vol 24, at 235-237. 89 Tommy T.B. Koh, note 82, at 8.

22

establishment of the contiguous zone due to the opposition from by

maritime powers, especially Britain.

In addition to the traditional uses of oceans which were confined

chiefly to navigation and fishing, the advance of technology in the 20th

century, especially after the World War II, has made possible the

exploration and exploitation of offshore natural resources by the coastal

States. Though the first international agreement on the delimitation of

seabed area was concluded in 1942 between the United Kingdom, on

behalf of Trinidad and Tobago, and Venezuela relating to the submarine

areas of the Gulf of Paria,90 the proclamation made by President Truman

of the United States on 28 August 1945, marked the birth of the new

regime in the international law of the sea: the continental shelf. The

Truman Proclamation could also be regarded as the starting point of the

positive law on the subject.91 The Truman Proclamation stated that the

Government of the United States

regards the natural resources of the subsoil and seabed of the

continental shelf beneath the high seas but contiguous to the coasts of

the United States as pertaining to the United States, subject to its

jurisdiction and control.92

Following the Truman Proclamation, many states all over the

world passed laws and regulations to unilaterally assert their rights over

the continental shelf and its resources.93 These claims to the continental

90 Anselm Francis, “Treaty between the Republic of Trinidad and Tobago and the Republic of Venezuela on the delimitation of the marine and submarine area: an analys”, (1991), Vol. 6, International Journal of Estuaries and Coastal Law, p 169. 91 Summary of the ICJ Jugdement of the 1969 North Sea Continental Case. Available at: http://www.icj-cij.org/icjwww/idecisions/isummaries/icssummary690220.htm. 92 American Journal of International Law, Sup., Vol. 40 (1946), p 46; See also in Louis B.Sohn and John E. Noyes, note 79, at 496. 93 Shigeru Oda, Fifty years of the Law of the Sea, (2003), at 18-22.

23

shelf gave rise to the need for a uniform rule relating the regime of the

continental shelf.

Aware of the importance of the law of the sea to the international

community and prompted by state practice, the International Law

Commission (ILC)- which was created by the United Nations in 1947

with the task of promoting the codification and progressive development

of international law- had incorporated the law of the sea in its very first

works. From 1950 to 1956, the legal regime of the continental shelf was

debated within the ILC and then adopted at the First United Nations

Conference on the Law of the Sea (UNCLOS). Under the 1958 Geneva

Convention on the Continental Shelf, the continental shelf was defined

as:

seabed and subsoil of the submarine areas adjacent to the coast but

outside the area of the territorial sea, to a depth of 200 metres or,

beyond that limit, to where the depth of the superjacent waters admits

of the exploitation of the natural resources of the said areas [under

which] the coastal States exercise sovereignty rights for the purpose of

exploring it and exploiting its natural resources.94

However, the tendency towards the extension of national

jurisdiction over the seas continued to increase, with some States,

especially the Latin America States, claiming not only the continental

shelf but also the superjacent water.95 In 1952, a conference on

exploitation and conservation of the marine wealth of the South Pacific

was held in Santiago (Chile) with participants from Chile, Ecuador and

Peru. As the result of the conference, these States adopted the Santiago

94 Article 1 and 2 of the 1958 Geneva Convention on the Continental Shelf. 95 R. R. Churchill and A. V. Lowe, The Law of the Sea, Third edition, (1999), at 144.

24

Declaration in which they fixed 200 nautical miles as their limits of

sovereignty and jurisdiction over the sea adjacent to their coats.96 Again,

during the 1970s, a number of Declarations were made by Latin

American countries to assert their sovereign rights over the renewable

and non-renewable resources in the water, seabed, subsoil of the area

adjacent to the territorial sea that not exceed to 200 nautical miles.97

However, not until 1971 was the concept of exclusive economic zone first

introduced by Kenya at the Asian-Africa Legal Consultative Committee

held in Lagos, Nigeria.98 With the overwhelming support from the

developing countries, the regime of the exclusive economic zone was

finally accepted at the Third UNCLOS in the framework of the “package

deal”.

Obviously, as compared with the 1958 Geneva Conventions on the

law of the sea, under the LOS Convention, the maritime zones under a

coastal state’s national jurisdiction expanded significantly. The LOS

Convention permits coastal state to establish functional maritime

jurisdiction in several areas, namely: the territorial sea up to 12 nautical

miles, the contiguous zone up to 24 nautical miles, the exclusive

economic zone up to 200 nautical miles, and a continental shelf of 200 to

350 nautical miles.99 The breadth of the said areas is measured from the

baselines which can be either normal baselines or straight baselines,

depending on the coastal state’s geographical features.100 With the

extension of the exclusive economic zone to 200 nautical miles and the

broadening of the continental shelf, it is estimated that more than one-

third of world oceans which was traditionally considered as the high seas 96 Koh, “The Exclusive Economic Zone”, (1989), Malaya Law Review, at 5. 97 Ibid, at 7. 98 R. R. Churchill and A. V. Lowe, note 95 at 160. See also Shigeru Oda, note 93, at 624. 99 Articles 3, 33, 57 and 76 of the LOS Convention. 100 Articles 5, 7 and 47 of the LOS Convention.

25

would be placed under coastal state jurisdiction. Consequently, according

to Hodgson, “every coastal state in the world will eventually have to

negotiate at least one maritime boundary with at least one neighbour”101

and disputes about delimitation are the price coastal States will have to

pay for the extension of their jurisdiction over the seas.102

3. Maritime boundary disputes in the South China Sea region:

There have been two factors that constitute the maritime boundary

disputes in the SCS: (i) the progressive development and codification of

the law of the sea which prompted States in the region to unilaterally

claim their maritime areas; (ii) the geographical circumstances in the

region does not allow coastal States to establish maritime jurisdiction to

the maximum possible extent as recognized by the law of the sea without

overlapping with others. Therefore, the following areas in the SCS were

identified by Ramses Amer as overlapping maritime areas among

countries in the region that need to be delimited between and among

States concerned: 103

- In the north western part of the SCS, the Philippines and Taiwan

have overlapping claims to the exclusive economic zone and the

continental shelf areas to the north of the Philippines and to the South of

Taiwan

101 Robert D. Hodgson and Robert W. Smith, “Boundary Issues Created by Extended National Marine Jurisdiction”, (1979), Vol.69, Geographical Review, at 423. 102 Reiner Logoni, “Interin Measures Pending Maritime Delimitation Agreements”, (1994), Vol. 78, No.2, American Journal of International Law, at 863. 103 Ramses Amer, “Claims and Conflict Situations” in Timor Kivimaki (ed), War or Peace in the SCS? (2002), at 31.

26

- In the Gulf of Tonkin, Vietnam and the People’s Republic of

China have overlapping claims to the exclusive economic zone and

continental shelf. However, the author omitted that in the Gulf of Tonkin,

not only the exclusive economic zone and the continental shelf between

Vietnam and China overlap, but there exists an overlap in the territorial

sea claims between the two countries.104

- The People’s Republic of China’s and Taiwan’s claim to the so-

called “historic water” in the SCS overlap to varying degrees with claim

to the exclusive economic zone and the continental shelf areas made by

Vietnam, by Indonesia to the northeast of Natuna, by Malaysia to the

north of the coast of the State of Sarawak, and to the northwest of the

State of Sabah, by Brunei to the north of its coast, and by the Philippines

to the west of the Filipino archipelago. However, the validity of this claim

is rejected by all countries in the region,105 even certain Chinese

academics accepted “the nine-dashed line and the historic water claims do

not conform to the provisions of UNCLOS, it is expected that China

would abandon them in the coming years”.106

- Brunei and Malaysia have overlapping claims to the exclusive

economic zone and continental shelf areas off the coast of Brunei and

Sarawak.

- Vietnam’s exclusive economic zone and continental shelf claim

to the south and southeast of its coast overlap with Indonesia’s

continental shelf claims to the north of the Natuna Islands.

104 See note 27, at 86. 105 Hasjim Djalal, note 16, at 113. 106 Ji Guoxing, note 43, at 42.

27

- Indonesia and Malaysia have overlapping claims to EEZ and

continental shelf areas in an zone to the east of Peninsular Malaysia and

to the west and north of Anambas islands, as well as to the east-northeast

of the Natuna Islands and to the Northwest of Kalimantan (Indonesian

part of Boneo) and to the west of Sarawak.

- Vietnam and Thailand, Vietnam and Malaysia and Vietnam,

Malaysia and Thailand respectively have overlapping continental shelf

and exclusive economic zone overlapping in the Gulf of Thailand.

- Another zone of overlapping claims to EEZ and continental shelf

areas can be found to the southwest of Vietnam, to the east-northeast of

the east coast of Peninsular Malaysia and to the southeast of the coast of

Thailand. The claims of Malaysia, Thailand and Vietnam overlap in one

area. In other areas, bilateral claims overlap between Malaysia and

Thailand, Malaysia and Vietnam and Between Thailand and Vietnam

respectively. There also existed a tripartite overlapping of continental

shelf and EEZ among Vietnam, Thailand and Malaysia in this area.

- There are overlapping claims to EEZ and continental shelf areas

in the Gulf of Thailand off the coast of Cambodia, Thailand and Vietnam.

The Cambodia, Thailand and Vietnam overlap in one area. In other areas

bilateral claims overlap between Cambodia and Thailand, Cambodia and

Vietnam and between Vietnam and Thailand respectively.

28

PART II – THE SETTLEMENT OF DISPUTES

MECHANISM IN THE LAW OF THE SEA CONVENTION

I. Development of the settlement of dispute in the law of the sea

It is important to note that, the rules and principles for the

settlement of disputes in the law of the sea is unalienable part of the

process of codification and progressive development of the law of the sea.

The League of Nations convened in 1930 the Hague Conference for

codifying the law of the sea in which, for the first time, 48 countries

examined legal question of the territorial sea and the contiguous zone and

related issues. With regard to the settlement of disputes at the

Conference, according to Gerard J. Tanja, although the topic of the

delimitation of territorial sea was hardly addressed at the Conference, it

seemed that the preference for the adoption of a median line rule was

obvious.107

After the failure of the 1930 Hague Conference, the political

environment of the world was not conducive for the countries to continue

their attempts to form the rules governing the ocean and sea issues. Since

the World War II, the demand for the natural resources was so high, the

ocean was beginning to be perceived to be amenable to a widening range

of human activity driven from platform as well as technology. The

discovery of offshore hydrocarbons in the seabed and subsoil and the

means to exploit these resource, led to increasing claims of exclusive

control over widers of areas of seas adjacent to coastal states.108

107 Gerard J. Tanja, The Legal Determination of International Maritime Boundaries (1990), at 7. 108 Natalie Klein, note 6, at 14.

29

In this context, the First UNCLOS was held in 1958 under the

auspices of the United Nations to codify the law of the sea. As the results

of the Conferences, four conventions on the law of the Sea and an

Optional Protocol on the Settlement of Dispute were adopted.109 These

legal instruments served as a legal framework governing the uses of the

seas and oceans and related issues. The Geneva Conventions on the law

of the sea had contributed significantly to the settlement of disputes in the

law of the sea through establishing rules and principles applicable to the

delimitation of territorial sea and the continental shelf. Douglas M.

Johnson and Mark J. Valencia had figured out the several important

elements that the First UNCLOS had contributed to the ocean boundary

delimitation practices in 1960s.110 They include: (i) recognition coasal

state’s jurisdiction on the continental shelf and its resources, consequently

leads to the delimitation of the continental shelf between States

concerned; and (ii) establishment of criteria for the delimitation of the

territorial sea and continental shelf between opposite and adjacent States.

However, the Geneva Conventions on the law of the sea also

contained a lot of uncertainties, such as the breadth of the territorial sea

and definition of the continental shelf. The easily abused definition of the

continental shelf had created confusion in States practice and encouraged

States to take the advantage of the language of the convention to claim

their continental to the fullest possible extent. In 1960, the Second

UNCLOS failed to solve the issues that had not achieved at the First

UNCLOS.

109 Four Conventions on the Law of the Sea adopted by the First UNCLOS are: Convention on Territorial Sea and Contiguous Zone; Convention on the High Seas; Convention on Continental Shelf and Convention on Fishing and Conservation of Living Resources of the High Seas. 110 Douglos M.Johnston and Mark J. Valencia, note 56, at 6.

30

Furthermore, by the mid-1960s, a need for a new legal order for

the oceans was well perceived by both the great powers and the coastal

States, and the four Geneva Conventions on the Law of the sea were

being rapidly overtaken by state practice.111 Additionally, the newly

independent nations that were born as result of the movement of

decolonization in 1960s also sought to reform those parts of international

law in whose formation they did not participate, which they perceived to

be detrimental to their interests.112 Increased interests in the seas as a

source of food had led to the development of distant water fishing fleets.

Coastal states become very anxious to protect these resources and

developing states considered their geographical advantage as an

opportunity to achieve economic development.

Moreover, on 1 November 1967, Malta's Ambassador to the

United Nations, Arvid Pardo, pronounced a historic speech before the

United Nation General Assembly in which he called for "an effective

international regime over the seabed and the ocean floor beyond a clearly

defined national jurisdiction" and the recognition of seabed and ocean

floor outside the limits of the national jurisdiction as “common heritage

of mankind”. The General Assembly adopted the Pardo’s proposal and

allocated it to the agenda of the United Nation’s First Committee. The

First Committee supported for the establishment of the Ad hoc Seabed

Committee whose task was to study the peaceful uses of the seabed and

ocean floor beyond national jurisdiction. At the suggestion of the Seabed

Committee, in 1970 the General Assembly adopted Declaration of

Principles governing the Deep Ocean Floor and the Resolution on the

Convening of the Third Law of the Sea Conference.

111 Tommy T.B. note 77, at 16. 112 Choon-ho Park, note 12, at 218.

31

The LOS Convention was the result of the tremendous efforts to

achieve “a new and generally acceptable convention on the Law of the

sea” made by the States participating in the Third United Nations

Conference on the Law of the Sea. Comprising 320 Articles

and 9 annexes, the LOS Convention has a quite comprehensive objective:

it establishes a legal order for the seas and oceans, including the deep

seabed and subsoil thereof.113 Such legal order, explained by the

Wolfrum, “is meant to promote the peaceful uses of the seas and oceans

by providing the balance between the different forms of usages and by

coordinating the various rights and interests of States parties”.114 The

LOS Convention indeed provides a board legal framework determining

the legal status of all oceans spaces and governing the legal regime of all

major uses of the sea and their natural resources.

Considered as the most important development in the settlement of

international disputes since the adoption of the United Nations Charter

and the Statute of the International Court of Justice,115 the settlement of

dispute mechanism in the LOS Convention has been constructed to

safeguard the agreed package of compromises against destruction through

unilateral and conflicting interpretation. Furthermore, the settlement of

dispute mechanism in the LOS Convention is aimed at contributing to the

maintenance and strengthening of international peace and security

through the reaffirmation of the obligation of the States parties to solve

their disputes arising from the convention by peaceful means in

conformity with international law and justice. 113 Rudiger Wolfrum, ‘ The Legal Order for the Seas and Oceans’ in Myron H. Norquist and John Norton Moroe (eds), Entry into force of the Law of the Sea Convention,(1995), at 161. 114 Ibid. 115 Alan E. Boyle, ‘Dispute Settlement and the Law of the Sea Convention: Problems of Fragmentation and Jurisdiction’, (1997), Vol. 46, No.1, The International and Comparative Law Quarterly, p 37.

32

II. The content of the settlement of disputes mechanism in the

Law of the Sea Convention

With more than hundred Articles, the LOS Convention devotes a

large part of its provisions to the settlement of disputes relating to law of

the sea.116 The inclusion of all provisions concerning the settlement of

disputes in the main body of a convention makes it quite different from

the 1958 Conventions where an optional protocol for the settlement of

disputes was prepared in parallel but separately. Although these four

Conventions became effective successively between 1962 and 1964, the

optional protocol has so far received only a few ratifications and never

been applied for the last twenty years.117

Settlement of disputes mechanism in the LOS Convention is

recognized as being both simple and complex118 and can be approached

from different perspectives:

From the structural perspective, the settlement of disputes system

in Part XV can be divided into three parts: the first section deals with

voluntary procedure; the second with compulsory procedures entailing a

binding decision; and the third part sets out the limitations and optional

exceptions to the compulsory procedures.119 Besides that, the provisions

116 Part XV: Settlement of dispute with 21 Articles; Annex V: Conciliation with 14 Articles; Annex VI: Status of the International Tribunal for the Law of the Sea with 41 Articles; Annex VII: Arbitration with 17 Articles; Annex VIII: Special Arbitration with 5 Articles. Besides that, Articles deal with dispute settlement can be found in Articles 15, 74 and 83 relating to the delimitation of territorial sea, exclusive economic zone and continental shelf ; Article 59, Article 263, Article 265 and Part XI. 117 Shigeru Oda, note 93, at 574. 118 Louis B. Sohn and John E. Noyes, note 74, at 800. 119 L. Dolliver M. Nelson, “The International Tribunal for the Law of the Sea: Some Issues” in Chandrasekhara Rao and Rahmatullah (eds), The International Tribunal for the Law of the Sea: Law and Practice, 2001, pp 49-50; A. O. Adede, The System of the Settlement of Dispute in the United Convention on the Law of the Sea, (1987), at 248.

33

for the settlement of deep seabed mining disputes are found in the Part XI

of the LOS Convention while the provisions for the delimitation of

maritime areas can be found in Article 15, 74 and 83.

From the subject-matter jurisdiction perspective, the settlement of

disputes mechanism can be categorized into disputes pertaining to the

delimitation of maritime boundaries; disputes concerning the exercise of

rights and duties of coastal States and other international actors in

maritime zones of national jurisdiction and disputes relating to the

activities in the Area.

From rationae-materiae jurisdiction perspective, the settlement of

disputes mechanism can be classified as disputes arising between and

among States themselves, and disputes involving the participation of

international organizations, corporations and individuals. Another way to

classify disputes in the LOS Convention is that disputes may be brought

to the compulsory third party dispute settlement and disputes may be

excluded or exempted from this mechanism.

The system of dispute settlement in the LOS Convention was built

on the basis of the fundamental principle in international law that the

parties to the dispute would be able to freely select by agreement any

dispute settlement procedure they desire.120 The principle of free choice

of means for the resolution of dispute was a manifestation of the principle

of equality of state under international law to which all States, regardless

of their differences in terms of geographical size, population, military

power, economic strength, development stage, socio-political regime, are 120 Louis B. Sohn, “The importance of the Peaceful Settlement of Disputes Provisions of the United Nations Convention on the Law of the Sea” in Myron H. Norquist and John Norton Moroe (eds), Entry into force of the Law of the Sea Convention, (1995), at 266.

34

free from any pressure from other States in choosing the method for the

settlement of their disputes emanating from the LOS Convention.

Article 279 of the LOS Convention states: “States parties shall

settle any dispute between them concerning the interpretation and

application of this convention by peaceful means in accordance with

Article 2, para.3 of the Charter of the United Nations”. As provided in

Article 33 of the Charter of the United Nations, international disputes are

typically settled, subject to the free choice of States, through either

negotiation (informal bilateral process) or through recourse to the third

party (formal) procedures. The third party procedures produce different

results, ranging from binding to non binding decisions, dependening on

the types of the third party mechanism chosen. Traditionally, third party

procedures can be classified into adjudicative and non-adjudicative

procedures. The adjudicative third party procedures always lead to

binding results and take the form of arbitration and tribunals. On the other

hand, the non-adjudicative procedures’ results are not binding to the

parties and may take the form of good offices, mediation, enquiry, fact-

finding, conciliation. Under the LOS Convention, both informal and

formal procedures are available to States parties.

Article 279 of the LOS Convention, however, has a broader scope

of applicability. According to J.G Merrills, it has double effects: firstly, it

extends the obligation contained in the Charter to non-member States of

the United Nations if they become parties to the LOS Convention;

secondly, it confirms that disputes relating to the LOS Convention must

be settled in accordance with justice.121 Besides the general obligation to

peacefully settle disputes as enumerated in Article 279 of the LOS 121 J.G Merrills, note 1, at 171.

35

Convention, the States parties may agree “at any time” to solve their

dispute by “any peaceful means of their own choice”.122 This possibility

allows States parties to become the “complete master” of how their

disputes are settled.123 When the States parties have chosen the dispute

settlement methods or procedures that they preferred, their choice will

prevail over the procedures provided in the Convention.124 This emphasis

on the parties’ autonomy is of course consistent with general practice and

was not controversial. The LOS Convention also imposed upon States

parties, who are parties to a dispute, the obligation to exchange of views.

Under Article 283, the States parties are required to proceed

expeditiously to exchange views regarding settlement of dispute by

negotiation or other peaceful means as well as in cases no settlement of

dispute was reached or the circumstances require consultation regarding

the manner of implementing the settlement.

Although the LOS Convention accords the primary importance to

informal mechanisms to settlement of dispute,125 “compulsory procedures

entailing binding decisions” is the main characteristic of the settlement of

dispute system in the LOS Convention. It is a new development as most

treaties relating to the international law of the sea have not provided for

obligatory binding third party dispute settlement.

Under this scheme, any dispute concerning the interpretation and

application of the LOS Convention shall, where no settlement has been

reached by recourse to negotiation or other mechanisms contemplated in

section 1, be submitted at the request of any party to the dispute to the

122 Article 280 of the LOS Convention. 123 Note 128, at 20. 124 Articles 281 and 282 of the LOS Convention. 125 Louis B. Sohn, note 112, at 265.

36

court or tribunal having jurisdiction under this section.126 This meant that

by becoming a party to the convention, a state becomes bound by the

compulsory procedure laid down in Part XV127 and can not “escape” from

legal obligation to have its dispute solved by third party, subject to the

conditions provided for in the LOS Convention.

With regard to the free choice of procedures for compulsory

settlement under Part XV, when signing, ratifying or acceding to the LOS

Convention or at any time thereafter, a state party could declare its

acceptance of one or more of the following:

(i) the International Tribunal for the Law of the Sea;

(ii) the International Court of Justice;

(iii) an arbitral tribunal; and

(iv) a special arbitral tribunal.128

The following table is a very basic recapitulation of legal status and

jurisdiction of each above mentioned judicial institutions with respect to

the settlement of disputes.

Legal status Jurisdiction ratione

materiae

Jurisdiction ratione

personae

ICJ Principal judicial organ All international States only.

126 Article 286 of the LOS Convention. 127 Shabtai Rosenne, Settlement of Disputes: a linchpin of the Convention - Reflections on fishery management dispute, a paper presented at the Twentieth Anniversary Commemoration of the Opening for Signature of the United Nations Convention on the Law of the Sea. 128 Article 287 of the LOS Convention.

37

of the United Nations.

Its operation and

function is based on

Charter of the United

Nations and the Status

of the ICJ which is an

integral part of the

Charter. ICJ is

composed of 15

members who are

elected by the United

Nations.

disputes of legal

nature brought to it.

ITLOS Established and

operated based on the

LOS Convention and

Annex to the

Convention. ITLOS is

composed of 21

members elected by the

Meeting of States

parties to the LOS

Convention. ITLOS is

a permanent judicial

institution.

Disputes concerning

the interpretation and

application of the

LOS Convention.

- States parties to the

LOS Convention.

- The International

Sea Bed Authority.

- Enterprise, state

enterprise, natural or

judicial persons

Arbitral

tribunal

Established and

operated based on the

LOS Convention and

Annex to the LOS

Convention. Arbitral is

an ad hoc institution.

Disputes concerning

the interpretation and

application of the

LOS Convention. An

Arbitral tribunal is an

adhoc institution.

States parties to the

LOS Convention.

A special

Arbitral

tribunal

Established and

operated based on the

LOS Convention and

Disputes concerning

the interpretation and

application of the

States parties to the

LOS Convention

38

Annex to the LOS

Convention. A special

Arbitral tribunal is an

ad hoc institution.

articles of the LOS

Convention relating

to: (i) fisheries, (ii)

protection and

preservation of the

marine environment;

(iii) marine scientific

research; and (iv)

navigation, including

pollution from

vessels by dumping.

A written declaration indicating their preferred choice of

compulsory mechanism can be made by States parties at any time and

revoked or modified on three month’s notice.129 If a State fails to declare

the preference or if the state party instituting a proceeding and the

respondent state party has not chosen the same forum, arbitration will be

used.130 In addition, a State’s failure to appoint an arbitrator will not

prevent the constitution of an arbitral tribunal and a State’s non-

appearance before the tribunal will not prevent the tribunal from reaching

a decision.131

The compulsory jurisdiction scheme in the 1982 Convention was

seen as a success of the Third UNCLOS because it was the first time not

only the developed countries, but also the developing countries and the

countries of Eastern Europe and Russia, were able to codify a dispute

129 Ibid. 130 Ibid. 131 Ibid.

39

settlement mechanism.132 The wide acceptance of this mechanism of

compulsory settlement was due to “many negotiators at UNCLOS III

thought that compulsory dispute settlement mechanisms could help

cement the compromises embodied in the Law of the Sea Convention”.133

During the course of negotiation at the Third UNCLOS, views on the

settlement of disputes in the LOS Convention by the third party were very

divergent: many developing States and a few States (such as France)

would not accept the International Court of Justice, but some would

accept a differently constituted specialist tribunal for the law of the sea,

while the Soviet block continued to oppose any form of judicial

settlement but would accept arbitration.134 Finally, to break the deadlock,

the so-called “Montreux formula”, proposed by Professor Willem

Riphagen of Netherlands was adopted and embodied in Article 287.135

However, there have also been some limitations and exceptions

which are governed by the 3rd section of Part XV, “limitations and

exceptions to the applicability of section 2”, that preclude States parties to

apply the compulsory procedure in the LOS Convention. If the provisions

in section 2 of Part XV allow States parties to unilaterally bring the case

to one of the four procedures, section 3 proceeds on the assumption that

certain disputes ought not to be subject to obligatory settlement at all. The

exclusion of certain disputes from the compulsory procedure was

prerequisite condition for the acceptance of the provision for the

132 John E. Noyes, “The Third Party Dispute Settlement Provisions of the 1982 United Conventions on the Law of the Sea: Implication for State Parties and for Non Parties” in Myron H. Norquist and John Norton Moroe (eds), Entry into force of the Law of the Sea Convention,1995, at 214. 133 John E. Noyes, “The International Tribunal for the Law of the Sea”, (1999), 32 Cornell International Law Journal, at 115. 134 Boyle, note 107, at 40. 135 Ibid.

40

settlement of dispute in the LOS Convention by the participants at the

Third UNCLOS.136

Under section 3 of Part XV, there are two categorises of exception

to compulsory jurisdiction, namely automatic and exceptional.137 The

automatic exception is governed by Article 297 while the latter is

regulated by Article 298. Under Article 297, a certain disputes will be

excluded from the compulsory procedures; these disputes include:

disputes involving rights of navigation, overflying, lying submarine

cable, the protection and preservation of marine environment, etc. It

means that, with respect to these disputes, States parties to the LOS

Convention are not bound by the compulsory procedures. On the other

hand, under Article 298, if a State party to the LOS Convention declares

at any time that it does not accept any one or more of the compulsory

procedures with respect to certain disputes, the other party to the dispute

could not use the compulsory procedure against them. According to

J.G.Merrills, Article 297 reflects the view of coastal States that certain

decisions relating to the exercise of sovereign rights or jurisdiction,

especially those concerning the exercise of discretion, should not be

subject to challenge in any form of adjudication.138

In short, the dispute settlement system in the LOS Convention is a

positive development in the settlement of international disputes in which

all disputes arising from the LOS Convention, to some extent, would be

resolved by international institutions in conformity with international law

136 Shabtai Rosenne and Louis B. Sohn, The United Nations Convention on the Law of the Sea: A Commentary, Vol.5 (1989), at 87. 137 H. Oxman, “The Third Party Dispute Settlement Provisions of the 1982 United Conventions on the Law of the Sea: Implication for State Parties and for Non Parties” in Myron H. Norquist and John Norton Moroe (eds), Entry into force of the Law of the Sea Convention, (1995), at 214. 138 J.G. Merrills, note 1, at 176.

41

and justice through the compulsory procedures. On the other hand, rights

to control and retain the full autonomy over the process of dispute

settlement of some “sensitive” disputes are also recognized and

guaranteed. The following table is a summary of the settlement of dispute

mechanism in the LOS Convention made by Judge O. Da of the

International Court of Justice:139

Topic Subject to the

compulsory settlement

procedures:

Not subject the

compulsory settlement

procedures:

Exercise by a coastal

state of its sovereign

rights or jurisdiction

provided in the LOS

Convention

- Disputes with regard to

the freedoms and rights of

navigation, overflight or

the laying of submarine

cables and pipelines or

other internationally lawful

uses of the sea specified in

Article 58 and Article 297,

Para 1 (a) and (b).

- Disputes relating to the

alleged contravention by a

coastal state of specified

international rules and

standards for the protection

or preservation of the

marine environment

(Article 297, Para 1. c),

All other disputes

Marine scientific

research:

All other dispute

- Disputes relating the

exercise by the coastal

139 Shigeru Oda, note 93, at 575 - 576.

42

state of a right or

discretion in accordance

with Article 264 (Article

297, Para 2 (a) (i)).

- Disputes relating

decision by the coastal

state to order suspension

or cessation of a research

project in accordance

with Article 253 (Article

297, Para 2 (a) (ii).

Fisheries

All other disputes

Disputes relating the

sovereignty rights with

respect to the living

resources in the exclusive

economic zone or their

exercise (Article 297,

Para 3 (a)).

Sea boundary

delimitation or historic

bays or titles

A state may declare not

to accept the compulsory

procedures (Article 298,

Para. 1 (a)).

Military activities and

law enforcement

activities in regard to the

exercise of sovereign

rights or jurisdiction

A state may declare not

to accept the compulsory

procedures (Article 298,

Para, 1 (b)).

In respect of which the

United Nations Security

Council exercises the

functions assigned to it

by the United Nations

Charter

A state may declare not

to accept the compulsory

procedure (Article 298,

Para, 1(c).

43

PART III – THE RELEVANCE OF THE LOS

CONVENTION TO THE SOUTH CHINA SEA DISPUTE

I. The relation between the LOS Convention and the Spratly

islands dispute

It is necessary to understand the nature of the relationship between

the LOS Convention and the SCS dispute in order to precisely elaborate

the roles that the LOS Convention may or may not have on the SCS

dispute as well as the possibility of utilizing the settlement of dispute

mechanism to the SCS dispute.

Firstly, and as explained above, the maritime boundary dispute in

the SCS dispute was principally driven by the substantial expansion of

national jurisdiction over the seas since the mid-20th century, while the

causes of the sovereignty dispute over Spratly islands were numerous,

including, but not limited to, the historic, legal, economic, geopolitical,

etc, reasons.140 Thus, it is incorrect to blame the LOS Convention as a

cause of the sovereignty dispute over islands in general, and for the

Spratlys islands in particular, since all disputes concerning the islands

existed long before the Third UNCLOS was convened.141 However, as a

matter of fact, the dispute over the ownership of the islands has been

prompted and intensified by the adoption of the LOS Convention as it

allows the islands to be treated as landmass territory thus possessing a

maritime space of its own.142

140 Bob Catley and Makmur Keliat, note 2, at 9 - 17. 141 Robert W. Smith and Bradford Thomas, note 8, at 66. 142 Article 121 of the LOS Convention.

44

The SCS countries, therefore, encountered serious conflicts of

interests arising from the ownership as well as the legal status of the

islands in dispute143 since the islands could serve as legal base points for

the disputants to project claims of exclusive jurisdiction over water and

resources in the SCS.144 The LOS Convention, therefore, has also

motivated claimant States to put a higher priority on protecting their

claimed sovereignty over offshore islands and their rights to marine

resources.145

Secondly, different views exist on whether the dispute settlement

mechanism under the LOS Convention can be applied to sovereignty

disputes over the Spratly islands. Article 293 of the LOS Convention

authorise a court or tribunal “having jurisdiction” to seize the dispute

arising from the interpretation and application of the LOS Convention to

apply the LOS Convention and other rules of international law not

incompatible with the convention.146 David Whiting, therefore, argues

that according to Article 293, if the court, under the part XV of the LOS

Convention, is asked to consider a case of territorial disputes, “previously

existing international law is to be taken into account”.147 He then referred

to the customary international law applicable to territorial disputes as the

courts based their decisions on the cases relating the island disputes

which are: the island of Palmas case, the Cliperton islands case and the

Legal status of Eastern Greenland case.148 On the other hand, Robert W.

Smith insisted that the provisions in the LOS Convention could not be

143 Choon-ho Park, note 12, at 229. 144 Christopher C. Joyner, note 65, at 197; see also Hungdah Chiu, note 21, at 744. 145 Park Hee Kwon, note 63, at 90-91. 146 Article 293 of the Los Convention. 147 David Whiting, “The Spratly Islands Dispute and the Law of the Sea”, (1997-1998), 26 Denver Journal of International Law, at 898. 148 Ibid, at 898-900.

45

applied to the sovereignty dispute at all149 because the Convention itself

does not contain any provisions relating to the resolution of disputes over

territory, islands, or other types of territory.150 Furthermore, while the

LOS Convention creates several bodies for adjudicating disputes and a

Commission to oversee claims to continental shelf beyond 200 miles,

there is nothing in the body of the LOS Convention which addresses

sovereignty issues.151 This view seemed to be supported by Park Hee

Kwon as he observes that the LOS Convention rules out the application

of the LOS Convention’s dispute settlement mechanism in disputes

related to sovereignty.152

The LOS Convention, indeed, does not deal with disputes over the

sovereignty of islands, nevertheless, and to some extent, it can be seen as

one of the factors that led to the intensification of sovereignty claims over

the islands. The LOS Convention instead addresses mainly the

relationship between States with regard to the use of seas and oceans

through the establishment of maritime jurisdiction zones and the exercise

of State jurisdiction in these zones. In fact, during the negotiation at the

Third UNCLOS, a drafted article concerning sovereignty disputes over

islands was deleted from the draft of the LOS Convention.153 The

application of the LOS Convention is premised on the assumption that a

particular State has undisputed title over the territory from which the

maritime zone is claimed.154 As one author has recognized, “indeed it

would be beyond the substantive scope of the convention to determine the

149 Robert W.Smith, “The Effect of Extended Maritime Jurisdictions” in Albert W. Koers and Bernard H. Oxman (eds), (1983), The 1982 Convention on the Law of the Sea, at 343. 150 Robert W. Smith and Bradford Thomas, note 8, at 67. 151 Ibid. 152 Park Hee Kwon, note 63, p 94. 153 Robert W. Smith and Bradford Thomas, ibid., at 69. 154 Ibid.

46

status of land territory”.155 Due to its capacity to generate a maritime

space, the disputes involving an island can be classified into: dispute over

the sovereignty of the island itself; and dispute over the effect that the

island may have on the delimitation of the adjacent maritime space.

However, these two issues are, by their nature, totally different from one

another. The maritime dispute issue is understood as dispute regarding

the delimitation of maritime spaces over which the coastal State would

carry out its national jurisdiction; whilst the territorial dispute was

defined as a legal dispute of a nature between two or more international

persons over the attribution of territory.156 In practice, when a question of

sovereignty over an island is solved bilaterally or by a third party

mechanism, the issue of maritime boundary of that island is usually

solved as a part of the same resolution.157 In other words, the resolution of

a dispute over sovereignty of an island is prerequisite for the settlement of

the maritime boundary of the island.

Fourthly, the provisions of the Vienna Convention on the Law of

Treaties of 1969 stipulates that, when a State becomes a full party to an

international legal instrument, it is entitled to all the rights and must

perform all the obligations specified therein. The State party may not

invoke provisions of its internal law as justification for its failure to

perform a treaty.158 The LOS Convention also obliges States parties to

fulfil the obligations provided for in the Convention in good faith and to

exercise rights, jurisdiction and freedom in a manner “which not

constitute an abuse of rights”.159 As most of the States in the SCS region

155 Ibid. 156 Enrico Milano, “Territorial Disputes, Wrongfull Occupations and State Resposibility: Should the International Court of Justice go the Extra Mile?”, (2004), Vol.3, The Law and Practice of International Court of Justice and Tribunals, p 509. 157 In practice, the ICJ 158 Article 27 of the 1969 Vienna Convention on the Law of treaties. 159 Article 300 of UNCLOS.

47

so far have ratified and become parties to the LOS Convention,160 they

are required to interpret and apply the provisions of the Convention “in

good faith in accordance with the ordinary meaning to be given to the

terms of the treaty in their context and in the light of its object and

purpose”. Such obligation would have a great effect on the SCS dispute,

in particular on the Spratly islands whose legal status as islands or rocks

is not clearly defined among disputants.

II. Rules applicable to the delimitation of maritime boundary

Having an overlapping maritime boundary claim resolved is a

prerequisite condition for a coastal State to exercise its national

jurisdiction over maritime space in conformity with the law of the sea. If

the overlapping areas can not be solved, the possibility of conducting

exploration and exploitation of marine resources, both living and

nonliving, in the overlapping areas is very limited. Thus, in case of

overlapping maritime boundary claims, the States concerned should

attempt to resolve the delimitation issue through either negotiation or by

the third party mechanisms. The methods and principles applicable to the

delimitation of the territorial sea, the exclusive economic zone and the

continental shelf are stipulated in Article 15, 74 and 83 of the LOS

Convention.

With reference to the delimitation of the territorial sea, Article 15

sets forth:

Where the coasts of two States are opposite or adjacent to each other,

neither of the two States is entitled, failing agreement between them to 160 Philippines 1984, Indonesia 1986, Vietnam 1994, Singapore 1994, China 1996, Malaysia 1996, and Brunei Darrussalam 1996.

48

the contrary, to extend its territorial sea beyond the median line every

point of which is equidistant from the nearest points on the baselines

from which the breadth of the territorial seas of each countries is

measured. The above provision does not apply, however, where it is

necessary by reason of historic title or other special circumstances to

delimit the territorial seas of the two States in a way which is at

variance therewith.

It is recognized that Article 15 of the LOS Convention repeats,

almost verbatim, the substance of the 1958 Convention on the Territorial

Sea and Contiguous Zone. Under Article 15 of the LOS Convention, the

combined equidistance-special circumstance principle was perceived as

applicable rules for the delimitation of territorial sea.161

Article 74 and 83 of the LOS Convention do not indicate what

substantive rules of delimitation law should be applied in the delimitation

of the exclusive economic zone and continental shelf. The regime

prescribed thus permits States parties to adopt a more flexible approach to

the delimitation of their continental shelf and the exclusive economic

zone, all the while respecting the principle of “equitable solution” and

“on the basis of international law”. The most common method used in the

delimitation of the continental shelf and the exclusive economic zone is

to firstly determine a provisional equidistance line, then consider whether

there are any special circumstances or relevant factors requiring this

initial line to be adjusted with a view to achieving equitable results.162

Under States practice as well as jurisprudence developed by the ICJ and

other international tribunals with respect to the delimitation of maritime

161 Victor Prescott and Clive Schofield, The Maritime Political Boundaries of the World, Second Edition, 2005, p 219. 162 A paper presented at the Twentieth Anniversary Commemoration of the Opening for Signature of the United Nations Convention on the Law of the Sea by Judge Raymond Ranjeva on behalf of Judge Gilbert Guillaume, President of the International Court of Justice, at 48.

49

boundaries, the special circumstances are those which might modify the

result produced by an unqualified application of the equidistance

principle.163

If no agreement can be reached in a reasonable period of time, the

States concerned shall resort to the dispute settlement procedures

provided for in Part XV of the LOS Convention.164 However, under

Article 298 of the same Part, States may declare that they do not accept

third party settlement mechanism for disputes concerning the delimitation

of the territorial sea, exclusive economic zone and continental shelf or

those involving the historic titles and historic bays. Disputes concerning

the delimitation of maritime boundaries are excluded from the

compulsory procedure provided for in the LOS Convention because of its

intimate ties to a State’s identity or perceived security.165

III. Delimitation of the maritime boundaries in the SCS region

In the last few decades, especially during the Cold War, the

diplomatic and political environment in the SCS region was not suitable

for States to undertake the delimitation of their maritime boundaries. The

relationships among States in the region were first strained by the

Vietnamese war and the subsequent ideological differences. Furthermore,

the outer limits of the coastal State’s national jurisdiction on maritime

space were yet to be defined clearly and the concept of the exclusive

economic zone had not yet been accepted. With the end of the Cold War,

relationships among States in the region have improved dramatically, thus

providing opportunities for the peaceful settlement of the SCS dispute. 163 Greenland and Jan Mayen case, ICJ Judgment of 1993, at 62. 164 Article 74 and 83 of the LOS Convention. 165 John E.Noyes, note 124, at 215.

50

The first agreement on the delimitation of the overlapping

continental shelf was between Indonesia and Malaysia in 1969. This

agreement delimited the overlapping continental shelf claims between the

two countries in the Strait of Malacca and in the SCS. At the time of

signature, both States were parties to the 1958 Convention, and their

overlapping claims arose when Indonesia and Malaysia made unilateral

claims in 1960 and in 1966 respectively. A second treaty between the two

countries signed in 1970 was related to the delimitation of territorial sea

in the Strait of Malacca. In the case of Indonesia, the territorial sea

boundary coincides with the continental shelf boundary. For Malaysia,

however, the territorial sea boundary doses not coincide with the

continental shelf, but slightly deviates in favour of Malaysia.166 Both

Indonesia and Malaysia claimed a 12 nautical mile territorial sea at the

time of signature.

Another agreement on the delimitation of the territorial sea was

concluded in 1973 between Indonesia and Singapore, to divide their

overlapping territorial sea claims in the Strait of Malacca. At that time,

Indonesia claimed a 12 nautical mile territorial sea, while Singapore

claimed only a 3 nautical mile territorial sea.

In 1979, Malaysia and Thailand signed a number of agreements

relating to delimitation of their overlapping maritime areas. Firstly, the

Treaty between the Kingdom of Thailand and Malaysia relating to the

delimitation of the territorial seas of the two countries of 24 October

1979, addressed the overlapping claims between the two States in both

the Malacca Strait and in the Gulf of Thailand. At the time of signature,

both states were parties to the 1958 Geneva Convention and signatories to 166 J. I Charney and L.M. Alexander, note 160, at 1029.

51

the LOS Convention. The Memorandum of Understanding between the

Kingdom of Thailand and Malaysia on the delimitation of the continental

shelf boundary between the two countries in the Gulf of Thailand was

also signed at the same day. However, the delineation of the continental

shelf boundary was limited. The continental shelf between the two

countries starts at the seaward terminus of the territorial sea boundary, but

the parties disagreed on the further offshore limit. Thus a provisional

measure was applied in the form of memorandum of understanding on the

establishment of a joint authority for the exploration and exploitation of

the resources of the seabed with respect to the disputed area. The

memorandum defined an area of joint development of oil and gas for a

period of 50 years commencing on the date on which the memorandum

come into force.

The Agreement between the Government of the Kingdom of

Thailand and the Government of the Socialist Republic of Viet Nam on

the delimitation of the maritime boundary between the two countries in

the Gulf of Thailand of 9 August 1997 was the first time Vietnam defined

a maritime boundary. The delimitation line constitutes the continental

shelf and the economic zone boundary in which the Vietnamese side

received 32.50 % of the overlapping area.

The second maritime boundary agreement between Vietnam and its

neighbouring countries was the Agreement between the People’s

Republic of China and the Socialist Republic of Viet Nam on the

Delimitation of the Territorial Sea, the Exclusive Economic Zone and

Continental Shelf in Beibu Bay/Gulf of Tonkin of 25 December 2000.

The agreement was a culmination of a negotiation process between

Vietnam and China that had started in 1974. According to the agreement,

52

Vietnam was given 53.23% of the overlapping area, while China received

46.77% of the overlapping area.

The latest agreement on maritime boundary which Vietnam entered

into was the Agreement between the Government of Vietnam and the

Government of the Republic of Indonesia on the delimitation of

continental shelf between the two countries of 25 June 2003 (not yet enter

into force).

Besides agreements on the permanent delimitation of maritime

boundaries, States have also opted for joint development agreements (oil

and gas) in the disputed area. These include agreements reached between

Thailand and Malaysia; and Vietnam and Malaysia. These provisional

arrangements are fully in conformity with the provisions of the LOS

Convention, since the LOS Convention encourages States concerned,

pending agreement on delimitation, to enter into provisional

arrangements of a practical nature which do not jeopardize the reaching

of the final agreement.167

III. Regime of island in the 1982 LOS Convention

The capacity of islands to generate maritime zones and to influence

to the location of international maritime boundaries was an international

concern long before the LOS Convention was adopted.168 During the

Third UNCLOS, these issues were perhaps the most controversial topics

and subject of a heated negotiating battle.169 167 Article 74 and 83 of the LOS Convention. 168 See Jonathan I. Charney, “Rocks that Cannot Sustain Human Habitation”, (1995), Vol. 93, American Journal of International Law, at 863. 169 Janusz Symonides, “The Legal Status of Islands in the New Law of the Sea” in Hugo Caminos (ed), The Law of the Sea, (2001), at 119.

53

The treatment of islands as mainland territory in their ability to

create the maritime space under the LOS Convention is not an innovation.

Under generally accepted principles of international law, there was not

difference in what nature of territory may generate a maritime zone.170 In

principle, all areas of land, including small islands and rocks above water

at high tide, are entitled to some maritime jurisdiction.171 The right of an

island to have maritime areas around it was recognized in both of the

LOS Convention and the 1958 Conventions on the law of the sea172 and

there are no differences in the legal definition of an island between these

conventions.173 However, with the introduction of the concept of the

exclusive economic zone and the broadening of the continental shelf

margin in the LOS Convention,174 islands started to represent a

remarkable potential for the States to which they belonged. The value of

even the smallest and remotest islands therefore has suddenly been

realized.175 It is estimated that, a zone of 200 nautical mile around a small

island can generate about 125,660 square nautical miles of ocean space176

in which the state has sovereign rights for the purpose of exploring and

exploiting, conserving and managing the natural resources, whether living

or nonliving of the waters-superjacent to the sea bed and of the sea bed

and its subsoil.177

170 Clive Ralph Symmons, The Maritime Zones of Islands in International Law, (1979), at 9. 171 B.H. Oxman, “Political, Strategic, and Historical Considerarions” in J.I. Charney and L.M. Alexander (eds), (1993), Interntaional Maritime Boundaries, at 20 172 See Article 121 of the LOS Convention; Article 10 of the 1958 Convention on the Territorial Sea and Contiguous Zone; and Article 1 of the 1958 Convention on Continental Shelf. 173 In both of the LOS Convention and 1958 Convention island was defined as “a naturally formed area of land, surrounded by water which is above water at the high tide”. 174 According to the Convention on Continental shelf of 1958, the outer limit of the continental shelf was defined to “a depth of 200 metres or, beyond that limit, to where the depth of the superjacent waters admits of the exploitation of the natural resources of the said areas” while under the LOS Convention, the outer limit of the continental shelf is either 200 nm or to maximum 350 nm. 175 Clive Ralph Symmons, note 170, at 9. 176 See Robert W. Smith and Bradford Thomas, note 8, at 66. 177 Article 56 (1.a) and 77 of the 1982 LOS Convention

54

Regarding the regime of islands, the LOS Convention states in its

Article 121; entitled “Regime of islands”:

1. An island is a naturally formed area of land, surrounded by water,

which is above water at the high tide.

2. Except as provided for in paragraph 3, the territorial sea, the

contiguous zone, the exclusive economic zone and the continental

shelf of an island are determined in accordance with the provisions of

this Convention applicable to other land territory.

3. Rocks which cannot sustain human habitation or economic life of

their own shall have no exclusive economic zone or continental shelf.

Although the geographical feature island is broadly defined as a

small piece of land surrounded by water, the legal denifition of such a

feature draws on nuances in its origin, size, geographical location,

ecologic conditions and, last but not least, political status.178 These

elements have a great effect on the role and value of islands in the

maritime boundary delimitation process. In term of geomorphologic

origin, there are two kinds of islands: continental and oceanic islands, in

which the former are built from granite or slate that has been exposed to

very high temperatures and extreme pressure similar to that occurring in

continents or along its fringes. The latter are mainly volcanic or volcanic

coral type.179

According to the Prescott, the first two paragraphs of the Article

121 of the LOS Convention have not caused any significant disagreement

between academic commentators since they repeat the content of the legal

regime of islands in the 1958 Geneva Conventions on the law of the

178 Janusz Symonides, note 158, at 115. 179 Ibid.

55

sea.180 In interpreting the concept of island in Article 121, Prescott has

identified four requirements that a feature has to fulfil in order to be

recognized as an island. They are: (i) naturally formed; (ii) area of land;

(iii) surrounded by water; and (iv) above the water at high tide.181 The

most controversial one is paragraph 3 of the Article 121 of the LOS

Convention. Under this paragraph, a rock “cannot sustain human

habitation or economic life of its own” is denied to have exclusive

economic zone and continental shelf; despite that under this paragraph a

rock is also considered a particular type of island.182 The criteria of

sustainability of human habitation and economic life are very elusive and

easily abused or misunderstood. With the advance of the technology and

new human activities, it is the ocean features that previously were not

capable of sustaining human habitation or did not have an economic life,

are now increasingly able to develop these capabilities. It would thus

seem that such features could no longer be regarded as rocks in the

meaning of the paragraph 3 of the Article 121.183

The international law of the sea makes a clear distinction between a

State’s territorial entitlement to an island and the weight given to such a

feature in its maritime boundary delimitation. Although the entitlement to

maritime area of an island is recognized, it is not necessarily meant that

an island will be given full weight in the delimitation of maritime

boundary. States’ practice and jurisprudence of international tribunals has

clearly demonstrated the different roles of island in maritime delimitation,

ranging from: (i) island ignored in maritime delimitation; (ii) island given

180 Victor Prescott and Clive Schofield, note 132, p 58. 181 Ibid. 182 See Marius Gjetnes, note 36, p 70; See also Jonathan I. Charney, note 157, at 864. 183 Jonathan I. Charney, note 157, at 867

56

partial effect; and (iii) island given full effect.184 Such treatment of

islands in maritime delimitation depends on a number of elements such as

size, location, capacity to sustain habitation, economic importance,...etc.

According to some authors:

[...recent arbitration, judicial decisions and negotiations have been

relatively consistent in refusing to give full effect to islands in

delimiting maritime boundaries. The Anglo-French arbitration, the

opinions of the ICJ and many bilateral treaties all stand for the

proposition that islands do not generate extended maritime

jurisdiction in the same that other landmasses do. Even the habited

islands such as New Jersey, Guernsey in the English Channel,

Kerkennah island near Tunisia, Seal island in the Gulf of Maine, and

the main island of Malta do not generate full extended maritime

zones if the impact of such an extension is to interfere with the claim

of another nation based on a continental landmass].185

With regard to the Spratly islands, the disputants have different and

confused views on the application of Article 121 (3) to the features in the

SCS.186 The Philippines and Malaysia might support the position that

rocks and islets have only a 12 nautical mile territorial sea and the waters

beyond 12 nautical miles are under the management of adjacent

countries.187 While others, inspired by new development of the law of the

sea, adopted legislations to regulate the legal status of the waters

surrounding the Spratly islands on the assumption that the Spratly Islands

could generate full maritime zones including an exclusive economic zone

184 See Lewis M. Alexander, “Baseline Delimitation and Maritime Boundaries” in Hugo Caminos (ed), The Law of the Sea, (2001), at 24-29. 185 Jon M. Van Dyke and Dale L. Bennett, “Islands and the Delimitation of Ocean Space in the SCS” in Elisabeth Mann Borgese, Norton Ginsburg and Joseph R. Morgan (eds), Ocean Yearbook No.10, (1993), at 87-88. 186 Nguyen Hong Thao, “Vietnam and the Code of Conduct for the SCS”, (2001), Vol. 32, Ocean Development and International Law, at 109. 187 Ibid.

57

and continental shelf despite the question of how much the sea around

islands country can claim remains unsettled.188 For instance, in the 1998

Exclusive Economic Zone and Continental Shelf Act, China implied that

the Spratly islands have its own continental shelf and the exclusive

economic zone.

In this regard, the attempts made by countries to assume that once

sovereignty over disputed rocks or small islands was solved, the victor

would automatically enjoy the rights to the vast areas of maritime space

around these structures are unfounded. In fact, as written by Jonathan I.

Charney, this assumption

is misplaced with respect to a true Article 121 (3) rock located in the

middle of the ocean, beyond the exclusive economic zone or the

continental shelf of any other feature, for Article 121 (3) allows only a

12-nautical-mile territorial and a 12-nautical- mile contiguous zone

seaward.189

IV. Recent developments in the SCS region

1. Declaration on the Conduct of Parties in the SCS

The Declaration on the Conduct of the Parties in the SCS (hereafter

referred to as DOC) was signed between ten ASEAN countries and China

on 4th November, 2002 at the Eighth ASEAN summit held in

Phnomphenh, Cambodia. The significance of the DOC, the first

document between ASEAN and China on the SCS, was regarded as “an

important step towards a Code of Conduct in the SCS and as a valuable

188 Michael Bennet, note 10, at 427. 189 See Jonathan I. Charney, note 157, at 866.

58

contribution to peace and stability in the region”,190 and promotion of

development and cooperation.191 Since the adoption of the DOC, the

situation in the SCS region has remained relatively stable in comparison

to previous decades.

The genesis of the Code of Conduct for the SCS can be traced to

the ASEAN Declaration on the SCS in Manila on 22 July 1992 (the 1992

Declaration) issued by the Foreign Ministers of the ASEAN countries.192

The ASEAN countries adopted the 1992 Declaration as they were

worried about the complicated developments in the SCS in late 1980’s

and early 1990’s. These worries stemmed from China’s policy in the SCS

with regard to the use of force to establish get a foothold in Spratly,

China’s signing of a contract with the US Creston Company to explore oil

and gas on the Viet Nam’s continental shelf, and China’s promulgation of

law on the territorial sea that could badly affect peace, security and

stability in the region,193 The 1992 Declaration stressed the need to solve

“all sovereignty and jurisdictional issues pertaining to the SCS by

peaceful measures, without resort to force” and, at the same time, called

for “parties concerned to exercise restraint with a view to creating a

positive climate for the eventual resolution of all disputes”.194

190 Joint Communiqué of the 36th ASEAN MINISTERIAL MEETING, Phnom Penh, 16-17 June 2003. Source: http://www.aseansec.org/14833.htm (last visited 20 June 2005). See also the Joint Communiqué of the 37th and 38th ASEAN MINISTERIAL MEETING. 191 Nguyen Hong Thao, “The 2002 Declaration on the Conduct of the Parties in the SCS: a Note”, Ocean development and International Law, p 279. 192 Kriangsak Kittichai, “A Code of Conduct for Human and Regional Security around the SCS”, (2001), Vol. 32, Ocean Development and International Law, at 133. 193 Nguyen Hong Thao, “Vietnam and the Code of Conduct for the SCS”, (2001), Vol. 32, Ocean Development and International Law, at 2-4. 194 The main content of the 1992 Manila Declaration on the SCS: “ 1. Emphasize the necessity to resolve all sovereignty and jurisdictional issues pertaining to the SCS by peaceful means, without resort to force; 2. Urge all parties concerned to exercise restraint with the view to creating a positive climate for the eventual resolution of all disputes; 3. Resolve, without prejudicing the sovereignty and jurisdiction of countries having direct interests in the area, to explore the possibility of cooperation in the SCS relating to the safety of maritime navigation and communication, protection against pollution of the marine environment, coordination of

59

Nevertheless, both the 1992 Declaration as well as two 1995 “Codes of

Conduct” between Viet Nam and the Philippines, and China and the

Philippines, failed to prevent China from expanding structures it built on

the disputed Mischief Reef in the Spratly archipelago, and the Philippines

from firing at, or arresting, Chinese fishing boats operating close to the

disputed Scarborough Shoal.

Against this backdrop, there was an urgent need to quickly

formulate a Code of Conduct (COC) in the SCS that would serve as a

framework to govern the conduct of parties concerned in the region. But

it was not until the sixth ASEAN Summit, held in Hanoi in December

1996, that the formulation of such a code of conduct tabled for discussion

and recorded in the Hanoi Plan of Action.

The item “strengthen regional peace and security in the Hanoi Plan

of Action” reads:

“7.1. Consolidate and strengthen ASEAN’s solidarity, cohesiveness

and harmony by strengthening national and regional resilience through

enhanced cooperation and mutual assistance to further promote

Southeast Asia as a Zone of Peace, Freedom and Neutrality.

7.4. Encourage and facilitated the accession by ASEAN’s Dialogue

Partners and other interested countries to the Treaty of Amity and

Cooperation with a view to developing the TAC into a code of conduct

governing relations between Southeast Asia States and those outside

the region.

search and rescue operations, efforts towards combatting piracy and armed robbery as well as collaboration in the campaign against illicit trafficking in drugs; 4. Commend all parties concerned to apply the principles contained in the Treaty of Amity and Cooperation in Southeast Asia as the basis for establishing a code of international conduct over the SCS”. Source: http://www.aseansec.org/1196.htm. (last visited 10 May 2005).

60

7.6. Encourage greater efforts towards the resolution of outstanding

problems of boundaries delimitation between ASEAN member States.

7.8. Encourage Member Countries to cooperate in resolving border-

related problems and other matters with security implications between

ASEAN member countries.

7.12. Encourage ASEAN member countries parties to a dispute to

engage in friendly negotiation and use the bilateral and regional

process of peaceful settlement of dispute or the procedures provided

for in the UN Charter.

7.13. Enhance efforts to settle disputes in the SCS through peaceful

means among the parties concerned in accordance with universally

recognized international law, including the 1982 UN Conventional on

the Law of the Sea.

7.14. Continue efforts to promote confidence-building measures in the

SCS between and among parties concerned.

7.15. Encourage all other parties concerned to subscribe to the ASEAN

Declaration on the SCS.

7.16. Promote efforts to establish a regional code of conduct in the

SCS among the parties directly concerned.”

Since 1999, ASEAN and China have conducted discussions at the

Working Group and Senior Official Meeting levels to implement the

decisions made during the sixth ASEAN Summit through the formation

of a Code of Conduct. After four years of strained and complicated

negotiations, due to diverged interest and political strategies, as well as

the complex nature of the sovereignty disputes in the SCS, the elaboration

61

of an agreed-upon Code of Conduct seemed to be unreachable. In its

place, the ASEAN countries and China reached a transitional solution by

adopting the Declaration on the Conduct of Parties in the SCS, at the

same time reaffirming their commitment to eventually elaborate a Code

of Conduct in the SCS.

The main content of the DOC can be categorized into three major

groups:

(i) Group of issues pertaining to international law:

- The parties reaffirm their commitment to the principles of the

Charter of the United Nations, the LOS Convention, the Treaty of Amity

and Cooperation in Southeast Asia, the five principles of Peaceful

Coexistence, which are underlying principles governing State-to-State

relations; and to resolve disputes in the SCS through peaceful means and

without resorting to the use of force.

- Respect of the freedom of navigation in, and overflight above, the

SCS in accordance with international law, and especially the LOS

Convention.

- Undertake to exercise self-restraint in the conduct of activities

that would complicate or escalate disputes and affect peace and stability,

including refraining from occupying islands, reefs, shoals or uninhabited

features.

(ii) Group of issues pertaining to building trust and confidence

measures:

62

- The parties reaffirm their efforts in the spirit of cooperation and

understanding to seek ways to promote trust and confidence building

measures, including holding dialogues among defense officials, providing

humane treatment to refugees, and exchanging information on a voluntary

basis;

- Readiness to intensify consultations and dialogues concerning

relevant issues, through modalities to be agreed upon by parties

concerned, including through regular consultations on the observance of

the DOC.

(iii) Group of issues pertaining to cooperative activities:

- The parties view that, pending a long term and durable solution to

the disputes in the SCS, parties concerned may explore or undertake

cooperative activities in a number of less sensitive areas such as:

environmental protection, marine scientific research, safety of navigation,

search and rescue operations, and combating transnational crime.

However, in order to deter parties concerned from taking advantage of the

cooperative activities for their own interests which may be detrimental to

the others’, the DOC provides for modalities, scopes, and locations, with

respect to bilateral and multilateral cooperation, which should be agreed-

upon by the parties concerned prior to their actual implementation.

In addition to the above-mentioned provisions, the DOC one again

reaffirms the determination of the parties concerned to further intensify

their cooperation with a view to concluding a Code of Conduct in the

SCS in the future.

63

2. Tripartite Agreement for the Joint Marine Seismic Undertaking

in the Agreement Area in the SCS between Vietnam, China and the

Philippines

On 14 March 2005, the National Oil Companies of Vietnam, China

and the Philippines signed a landmark “Tripartite Agreement for the Joint

Seismic Undertaking in the Agreement Area in the SCS”. According to

the agreement, the three oil companies of Vietnam, the Philippines and

China will undertake joint research for petroleum resources in an area of

the SCS, as defined by specific geographic coordinates, and for a period

of three years.195 The "agreement area" covers about 143,000 square

kilometers, including the disputed Spratlys.196

The signature of the 3-year Agreement was hailed as a success by

the governments concerned: the Philippines president Gloria Macapagal-

Arroyo described the agreement with the China National Offshore Oil

Corp. (CNOOC) and Vietnam Oil and Gas Corp. (VOGC) as

a historic event because it is the breakthrough in implementing the

provisions of the code of conduct in the SCS among ASEAN and

China to turn the SCS into an area of cooperation rather than an area of

conflict" [and] "it is not only a diplomatic breakthrough for peace and

security in the region, but also a breakthrough for our energy

independence program because one of the elements of this program, is

to work on strategic alliances with our friends and allies so that we can

have more supply of energy for the region and our country.197

195 Source: http://www.thanhniennews.com/business/?catid=2&newsid=5556 196 Kyodo News, Monday, March 14, 2005. 197 Ibid.

64

The Vietnamese ambassador to the Philippines, Dinh Tich, stated

that the agreement would help turn the SCS "into an area of peace,

stability and cooperation and development",198 while the Chinese

ambassador, Wu Hongbo, stated that the trilateral cooperation, based on

mutual understanding and common interest, would set a good example

for the countries concerned to resolve the SCS issue in a peaceful way.199

Five months after the conclusion of the Tripartite Agreement, on

26 August 2005, the commencement of seismic work in the SCS was

conducted by China Oilfield Services Ltd. (COS), a subsidiary company

of the China National Offshore Oil Corporation (CNOOC) - which won

the two-dimensional seismic exploration project through bidding which

was jointly organized by the three national oil companies. This event

marks a new progress in the cooperation among China, the Philippines

and Vietnam in the disputed SCS area.

198 Ibid. 199 Ibid.

65

Conclusion

Settlement of international disputes by peaceful means, especially

disputes involving territorial issues, is not only an obligation but an

aspiration that States concerned must adhere to if they wish to create an

international environment conducive to their very own stability and

development. However, the peaceful settlement of international disputes

depends in large on many factors, including sound political relations and

good faith between States, and a willingness to adopt a spirit of

conciliation and mutual compromises.

As an international legal order for the seas and oceans, the LOS

Convention regulates all aspects of the uses of the seas and oceans,

including the settlement of disputes may arising from the interpretation

and application of the LOS Convention. Regarded as one of the most

important development in settlement of international dispute since the

adoption of the Charter of the United Nations, the settlement of disputes

mechanism in the LOS Convention provides a legal framework for the

States parties to solve their disputes relating the law of the sea. Although

the LOS Convention does not directly address sovereignty disputes over

islands, many aspects of this dispute, such as question of the entitlement

of the islands, the delimitation of maritime boundary, etc, are governed

by LOS Convention. The LOS Convention therefore can serve as the

starting point for the States concerned and provide them with certain

fundamental, and internationally accepted legal approaches, to guide

them through the peaceful resolution of the SCS conflict. Pending final

solutions to the delimitation of maritime boundaries for the islands, the

States concerned are able to enter into provisional arrangements which

should not prejudice their ability to reach these final agreements.

66

Fully aware of the important role of the LOS Convention to the

Spratly islands dispute, in the past few years, States of the SCS region

have been striving for a long-term and durable resolution to the Spratly

islands dispute on the basis of the LOS Convention. These efforts have

proved fruitful as the situation in the SCS region remains relatively stable

in comparison with the high tensions which was predominated the region

in the early 1990s. For the first time, China and ASEAN countries have

reached a Declaration which seeks to normalize the conduct of Parties in

dealing with the SCS issues. Once again, in the Declaration, the parties to

the Declaration reaffirmed and committed themselves to the principles

and content of the LOS Convention. Not only does this document lay

down the framework for the pursuit of activities in the SCS, but it also

gave a blue print for cooperation in oceans affairs among the States for

the future. The tripartite agreement on the joint seismic survey in the SCS

signed between three national oil and gas companies of Vietnam, China

and the Philippines is a good example. The tripartite agreement has a

positive impact on promoting joint maritime exploration, stabilizing the

situation, and generally strengthening good relations and mutual trust

between the countries concerned.

A long-term, durable and comprehensive solution for the Spratly

islands dispute depends on many factors of which the question of the

geographic nature and legal status of the Spratly islands States may be

considered as those of the most important elements. Giving too little or

too much weight for the Spratly islands seems to be difficult to be

accepted or compromised by the parties.

67

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